MI- Bay County attorney hopes to test homeless defense for man accused of failing to register as a sex offender

11-10-2009 Michigan:

by LaNia Coleman | The Bay City Times

How does a convicted sex offender comply with the state Sex Offender Registration Act if he’s homeless?

“The legislature has us in a quandary,” Bay City attorney Mark E. Janer said.

Janer is representing Patrick J. Maher Jr., a 29-year-old man jailed in April for failing to comply with the act that compels sex offenders to register their addresses with state police.

Offenders charged with misdemeanors must register annually. Felons must register every three months.

Registrants must show state-issued photo identification. The state, however, won’t issue a photo ID card to a person without an address.

“If he can’t find a place to live, it’s impossible to comply with the law,” Janer said.

Maher entered a guilty plea in April and was scheduled for sentencing Monday but Janer filed a motion to withdraw the plea.

Janer said he wants the opportunity to introduce the homeless defense, either in a preliminary hearing in District Court or at trial in Circuit Court.

As Janer prepares to test the defense in Bay County, a state Court of Appeals is grappling with the same issues in the case of People v. Dowdy.

The case of Randall L. Dowdy sprang from Ingham County and landed in the lap of the state Supreme Court in February.

Dowdy, 61, was rendered homeless in 2006 after operators of an Ingham County homeless shelter gave him the boot because of his sex offender status.

Dowdy failed to register his address because he had no address to register. Meanwhile, he was bunking in abandoned buildings and public places.

The high court justices hashed over the case for about six months, failed to reach a consensus, then tossed the hot potato to the appeals court for further consideration.

“There is no published case law governing the unusual factual circumstances,” Chief Justice Marilyn Kelly wrote in an Aug. 6 order remanding the case to the Appeals Court.

Assistant Prosecutor Barbara J. Hayward isn’t convinced that Maher’s case mirrors Dowdy’s.

“He (Maher) was transient but not homeless,” Hayward said.

She said he has stayed with friends and family off and on and this was not the first time he failed to comply.

“He would rather float along than apply himself,” Hayward said. “Is he making the choice to bounce around and make himself technically homeless?”

Hayward said any sex offender could claim homelessness to skirt registration requirements.

Bay County Circuit Judge Joseph K. Sheeran granted Janer’s motion to withdraw Maher’s plea.

Maher’s next court date is pending.

Maher pleaded guilty April 15, 2002, to attempted third-degree criminal sexual conduct with a person 13 to 15. The charge stemmed from a July 4, 2001, incident in Bay County, state records show. ..Source..